Citation Nr: 1326000
Decision Date: 08/15/13 Archive Date: 08/26/13
DOCKET NO. 10-23 302 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUES
1. Entitlement to service connection for a back disability.
2. Entitlement to service connection for a bilateral foot disability.
3. Entitlement to service connection for an acquired psychiatric disability.
ATTORNEY FOR THE BOARD
Bordewyk, Alicia R.
INTRODUCTION
The Veteran served on active duty from May 1968 to May 1970.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, in pertinent part, denied entitlement to the above claimed benefits.
The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim for service connection for panic attacks, anxiety, and depression as encompassing entitlement to service connection for an acquired psychiatric disability regardless of the precise diagnosis.
The Board remanded the claim in November 2012 for additional development.
The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The types of evidence that indicate that a current disability may be associated with military service include credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson,
20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83.
When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
The Veteran was provided with a VA examination in connection with his back claim in May 2012. The examiner provided a negative etiology opinion, stating in part as a rationale that there was a significant gap between discharge in 1970 and the first evidence of back symptoms in 2008. However, records obtained pursuant to the Board's 2012 remand pertaining to Social Security Administration (SSA) disability benefits demonstrate that the Veteran reported complaints of low back pain for several years in May 1994. It is, therefore, not clear whether the May 2012 examiner had reviewed the SSA records. In any event, it appears that the opinion was based on an inaccurate history. Therefore, an addendum must be provided in light of this evidence.
Regarding the bilateral foot disability, the Veteran has not asserted that his current disability is directly related to service and the current evidence does not demonstrate such a direct relationship. Rather, he has asserted that his physicians have said his current feet symptoms could be due to or related to his back disability. Therefore, the bilateral foot claim is "inextricably intertwined" with the claim for service connection for a back disability and it must be remanded to allow for the adjudication of the Veteran's back disability claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991).
Regarding the acquired psychiatric disability claim, records pertaining to the SSA disability benefits demonstrate that the Veteran reported in a May 1993 evaluation that he had panic attacks and an onset of anxiety symptoms in 1970. SSA records demonstrate diagnoses of generalized anxiety disorder, major depression, and affective disorder in the mid-1990s. Since the institution of this claim, the record demonstrates reports of panic attacks and a diagnosis of depression. Therefore, the Board finds that the Veteran must be provided with a VA examination to determine the nature and etiology of any current acquired psychiatric disability or symptoms, to include anxiety, panic attacks, and depression.
The Board requests that this opportunity is taken to obtain any outstanding records of ongoing VA treatment, including since May 2010, the last treatment of record.
Accordingly, the case is REMANDED for the following action:
1. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA.
All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile.
2. Once the above development has been completed, forward the complete claims file, including SSA records, any relevant records contained in the Virtual VA system, and a copy of this remand to the VA examiner who provided the May 2012 back examination to obtain an addendum consistent with this remand. If the same examiner is unavailable, the Veteran must be provided with a new VA back examination with a qualified physician to determine whether his current back disability is etiologically related to service.
Consideration of the complete claims file should be reflected in the completed examination report or in an addendum.
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current back disability had its onset in service or is otherwise related to a disease or injury in service, including the March 1970 mild back sprain.
The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. The examiner is requested to specifically respond to the evidence demonstrating a complaint of back pain for several years in the May 1994 SSA record.
If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so.
If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered.
3. Once the above development has been completed, provide the Veteran with a VA examination with a qualified psychiatrist or psychologist to determine whether any current disability is related to service.
The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum.
The examiner is requested to list all current acquired psychiatric disabilities.
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current acquired psychiatric disability, to include depression and any disability manifested by panic attacks, had onset in service or is otherwise related to a disease or injury in service.
The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. The examiner is requested to specifically respond to the Veteran's reports that he began experiencing panic attacks and anxiety during service.
If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so.
If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered.
4. The agency of original jurisdiction (AOJ) should review the examination reports to ensure that they contain the information, opinions, and rationales requested in this remand.
5. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained and readjudicated the claim for service connection for back, feet, and acquired psychiatric disabilities. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012).
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J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).